An Argument for Pre-Professional Athletes Being Able to Retain Agents

By Darren Heitner, of Heitner Legal

Pre-professional athletes should never be prevented from retaining agents and legal counsel of their choosing, whether the retention is intended to assist with the procurement and negotiation of NIL deals or even to explore opportunities at the professional level, and then suffer the consequence of giving up their eligibility to participate in intercollegiate athletics.

Rick Karcher and I have been discussing this issue recently and Professor Karcher just published a brief article that further fleshes through the above position along with providing a model statute for states to pass, if they so wish.

While the NCAA, since July 1, 2021, does permit athletes to engage representation for the purpose of securing NIL deals, Bylaw 12.3.2.1 still restricts an athlete from having a lawyer present during discussions of a contract offer with a professional organization or having the lawyer make any direct contact with a pro sports organization on the athlete’s behalf.

There is 1 exception. Only certain men’s basketball players, represented by agents who have gone through an NCAA certification process, can have limited representation as long as the rep agreement is terminated prior to enrollment in the next academic term. Baseball and hockey players also have a limited exception to be represented by an agent if drafted. Football players are out of luck.

Karcher’s proposed model statute, which I approve of, includes, “Every amateur athlete has a right, at any time, to representation and counsel of an agent in seeking employment opportunities as a professional athlete, which may include communications concerning the prospects of employment and contract negotiations with professional sport team and organization personnel.” It continues, “Such right to representation and counsel by an agent includes a right to enter and maintain a representation agreement at any time and a right of confidentiality concerning any information and communications pertaining to the agent’s representation and counsel of the amateur athlete.”

I don’t know if any legislators in any states are interested in taking up this effort as of now, but the rights we are talking about here are just as fundamental to athletes as ensuring that they have the capacity to exploit their names, images, and likenesses for commercial gain. Perhaps, the limitations discussed here do not affect as many athletes, which adds a challenge in convincing politicians to take up such a cause. But it is a notable one, and I thank Professor Karcher for putting in the time. He has my support.

Here’s the link to Karcher’s piece: https://lnkd.in/eC6S7JDN